(concurring) — I agree with the majority that
the Alford7 plea should not be given preclusive effect in this case to establish probable cause for bringing a subsequent civil action by a plaintiff alleging facts similar to the *918criminal charges which were the subject of the Alford plea. I write separately to emphasize that the analysis of the preclusive effect of an Alford plea might be different if the party entering such a plea brought a malicious prosecution action against the state, prosecutor, or a complaining witness in the criminal case alleging no probable cause for the criminal charges. We do not reach that issue in this case. See majority at 909 n.4.
It should also be noted that Clark did not offer tins Alford plea of Baines as preclusive evidence of the sexual assault alleged in her civil complaint. Rather, she offered it and the judge granted summary judgment on the basis that the Alford plea preclusively established probable cause to bring the civil action. I agree with the majority that in this case Clark’s veracity will need to be determined by the jury. That is because of the limited admissions contained in Baines’ Alford plea and the fact that the evidence will be primarily Clark’s word against Baines’. However, that is not to say that an Alford plea could never support probable cause for a subsequent civil action warranting summary judgment on a malicious prosecution counterclaim. Each case would have to be viewed in light of the contents of the plea and the other evidence available on the issue of probable cause to institute the civil action.
Additionally, it should be emphasized that the Alford plea may be admissible, within the discretion of the trial court, as an admission by Baines. Consideration of Baines’ malicious prosecution claim is undertaken only if the jury reaches a defense verdict for Baines. Should Clark prevail in her action, the jury will not even consider the malicious prosecution counterclaim.
Madsen and Beidge, JJ., concur with Ireland, J.North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).